法学方法论在涉外民商事裁判中的适用探析

The Analysis of Legal Methodology in Foreign-Related Civil Litigation and Commercial Arbitration

涉外民商事司法审判中向来遵循特定的确定法效果的司法三段论。从法学方法角度审视,冲突规范的确定与适用过程属于"双重找法"。识别的过程是裁判者目光在规范与事实间交错的体现,受制于解释学循环的制约。准据法的正确解释与适用,则应以对"涵摄"概念的认知为前提。传统法律选择方法向现代化发展的脉络中,愈发突出强调在法的安定性与公正性之间的平衡。

Foreign-related civil and commercial judicial trial has always followed the specific method to determine the effect of the judicial syllogism. From the viewpoint of the legal methods, the determination of conflict rules and its application process belongs to double finding law process, in which the judge need to keep an eye on alternating between norms and facts, subject to the restriction of hermeneutische circle. The suitable application of lex causae should be on the premise of the cognition of subsumtion. When the traditional choice of law method was transformed to the modern development, it was increasingly highlighted in the balance between stability and integrity.